# Milne v. Westbank Fishing, LLC

> District Court, E.D. Louisiana · January 14, 2025

URL: https://www.frixlaw.com/law-library/cases/10780430

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** January 14, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

TIMOTHY MILNE CIVIL ACTION

VERSUS NO. 24-1179

WESTBANK FISHING, LLC SECTION M (1)

ORDER & REASONS
Before the Court is a motion for summary judgment filed by defendant Westbank Fishing,
LLC (“Westbank”), arguing that it is not obligated to provide plaintiff Timothy Milne with
maintenance and cure because he failed to fully disclose his ongoing treatment for a chronic back
problem on his preemployment questionnaires.1 Milne responds in opposition, arguing that he
provided enough information to put Westbank on notice of his chronic back problems and that his
prior medical history was not material to Westbank’s hiring decision.2 Westbank replies in further
support of its motion.3 Having considered the parties’ memoranda, the record, and the applicable
law, the Court denies Westbank’s motion because it has not carried its summary-judgment burden
of establishing beyond dispute that Milne intentionally misrepresented his medical condition and
that his condition was material to Westbank’s hiring decision.
I. BACKGROUND
This matter concerns a maritime personal injury. In March 2022, Westbank first hired
Milne to work as a seaman aboard one of its vessels for the 2022 fishing season, which runs from
April to November.4 Westbank vetted Milne in part by having him complete medical

1 R. Doc. 15.
2 R. Doc. 17.
3 R. Doc. 19.
4 R. Docs. 15-1 at 5; 17 at 2.
questionnaires. On the first medical questionnaire dated March 28, 2022, Milne responded that he
did not have any disabilities, long-term health problems, or adverse physical conditions, and he
checked “no” next to “back/neck problems” on a list asking if he currently has, or previously had,
certain medical conditions.5 But, in response to a question asking if he “ever had back trouble or
injury to [his] back, head or neck,” Milne circled “yes” and wrote “back trouble” as an

explanation.6 In addition, on the workers’ compensation medical questionnaire completed April
29, 2022, in response to an open-ended question asking about other medical conditions, Milne
responded that he had degenerative disc disease that was diagnosed in 2021, and involved the “two
bottom discs” of his spine.7 But he also indicated that he was not receiving treatment, or taking
medication, for the condition.8 Milne successfully completed his first season with Westbank
without incident.9
Then, in early 2023, Milne applied to Westbank to work aboard its vessels for the 2023
fishing season.10 Westbank again had Milne complete the preemployment medical paperwork.11
This time, on a form dated March 27, 2023, in response to a question about long-term health
problems or adverse physical conditions, Milne reported that he had back issues.12 However, he

again checked “no” next to “back/neck problems” on a list asking if he currently has, or previously
had, certain medical conditions.13 In late March or early April 2023, Gustavo Chavarria,
Westbank’s human resources director, met with Milne to discuss Milne’s responses regarding his

5 R. Doc. 15-8 at 1-3.
6 Id. at 2.
7 R. Doc. 15-10 at 3.
8 Id.
9 R. Doc. 17-2 at 3.
10 R. Doc. 17 at 5.
11 Id.
12 R. Doc. 17-6 at 1.
13 Id. at 2.
low back issues.14 Milne explained that he had back problems before he went to work at Westbank
for which he had undergone physical therapy and continued to follow a home exercise program,
but that this condition did not prevent him from performing his job.15 According to Milne,
Chavarria did not request any further information, nor another physical, and allowed Milne to
return to work.16

On May 14, 2023, Milne was injured while working as the second engineer aboard the F/V
Mary Virginia, a vessel owned and operated by Westbank.17 Milne alleges that as the vessel was
preparing to depart from Westbank’s dock, he slipped and fell in a slick substance, injuring his
lower back and right wrist.18 After the accident, Chavarria performed an initial investigation that
revealed that Milne fell approximately 12 feet from the gunnel of a purse boat onto the Mary
Virginia’s main deck.19 Westbank approved maintenance at a rate of $490.00 every two weeks.20
Westbank sent Milne for emergency medical treatment, which included exams of Milne’s back,
neck, and head.21 The tests did not show any fractures or injuries requiring special treatment.22
Milne was referred to Dr. Scott Tucker for an orthopedic evaluation of his back and wrist.23 On
September 7, 2023, Dr. Tucker cleared Milne to return to work without restrictions.24 Thereafter,

Milne told his captain that he had back pain and could not work.25 He was diagnosed with back
strain, and Westbank agreed to pay for treatment by a physician of Milne’s choice.26 Milne chose

14 R. Doc. 17-2 at 3.
15 Id.
16 Id.
17 R. Doc. 2 at 2.
18 Id. at 2-3.
19 R. Doc. 15-1 at 2-3.
20 Id. at 3.
21 Id.
22 Id.
23 Id.
24 Id. at 3-4.
25 Id. at 4.
26 Id.
Dr. Stephen Rynick, who has not recommended surgery.27 Westbank also sought a second opinion
by Dr. Everett Robert, who does not believe Milne’s back pain is attributable to any fall, but rather
is related to preexisting conditions that date from September 2021.28 Dr. Robert, too, has not
recommended surgery.29
On May 9, 2024, Milne sued Westbank seeking damages under the Jones Act and for

maintenance and cure.30 Westbank now moves for summary judgment on Milne’s maintenance-
and-cure claim.
II. PENDING MOTION
Westbank argues that, pursuant to the McCorpen defense, Milne is not entitled to
maintenance and cure because he materially misrepresented his chronic lower back condition on
his preemployment medical questionnaires.31 According to Westbank, Milne’s medical records
show that, at the time he completed the preemployment medical questionnaires, he was receiving
treatment for back problems, including physical therapy, and was having difficulty working as a
rigger for another company.32 Specifically, Westbank argues that Milne, in response to the medical

questionnaires dated March and April 2022, failed to state that he was actively participating in
physical therapy, taking medication, and seeking a surgical recommendation for ongoing back
problems and that he did not mention that he was having difficulty performing his job as a rigger
at another company.33 Westbank contends that Milne’s less than fulsome responses to the
questions constitute “tepid disclosure” and a material misrepresentation of his back condition
because he was diagnosed with back problems and was actively seeking treatment from a doctor

27 Id.
28 Id.
29 Id.
30 R. Doc. 2 at 1-7.
31 R. Doc. 15.
32 See R. Doc. 15-1.
33 Id. at 1-3, 5-6, 8-15.
and physical therapist at the time he completed the preemployment paperwork.34 Westbank further
argues that, had Milne fully disclosed his back issues, Westbank would have required additional
diagnostic tests and a more comprehensive medical examination prior to hiring him and likely
would not have hired him.35
In opposition, Milne argues that he did not intentionally misrepresent his back problems

during Westbank’s preemployment vetting process and he made more than a “tepid disclosure.”36
He contends that he was not undergoing physical therapy for back problems when he completed
the March 28, 2022 questionnaire because his last physical therapy appointment occurred before
that date, on March 22, 2022, and he cancelled the appointment that was scheduled for April 6,
2022.37 Milne also states that he did not know of any diagnosis related to his back, other than
degenerative disc disease, when he completed the paperwork.38 He points out that, at a February
26, 2022 preemployment physical, he reported that he had back trouble or injury to his back, head,
or neck, indicating that he experienced lower back pain for which he took hydrocodone, and his
spinal exam for the physical was “normal” and he was cleared to work without restrictions.39 He

also emphasizes that he indicated he had back pain or degenerative disc disease on both the March
2022 and April 2022 questionnaires and on the one in 2023, which prompted the inquiry from
Westbank’s human resources director.40 According to Milne, these disclosures, taken together,
constitute more than a “tepid disclosure” that certainly put Westbank on notice of his back issues.41
Milne further argues that Westbank cannot satisfy the materiality prong of McCorpen because the

34 Id. at 6-7, 15-17.
35 Id.
36 R. Doc. 17.
37 Id. at 3-4.
38 Id. at 4.
39 Id. at 4, 14-15.
40 Id. at 5, 14-15.
41 Id. at 14-16.
2023 meeting with Chavarria did not result in his being sent for more tests or being held back from
work, which, says Milne, demonstrates that Westbank would have hired him regardless of his
disclosures.42
In reply, Westbank argues that Milne’s affidavit continues to downplay the significance of
his preemployment medical records, particularly an MRI that Westbank says proves he had a prior

work injury.43 Westbank also contends that Milne’s answers on the preemployment questionnaires
were not forthcoming because he failed to disclose ongoing treatment, which, says Westbank,
precludes him from receiving maintenance and cure.44
III. LAW & ANALYSIS
A. Summary Judgment Standard
Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56. “Rule 56(c) mandates the entry of

summary judgment, after adequate time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. A party
moving for summary judgment bears the initial burden of demonstrating the basis for summary
judgment and identifying those portions of the record, discovery, and any affidavits supporting the
conclusion that there is no genuine issue of material fact. Id. at 323. If the moving party meets

42 Id. at 16-18. Milne concedes that Westbank can meet the third prong of McCorpen – namely, the existence
of a causal link between the preexisting medical condition and the current injury or injuries. Id. at 17.
43 R. Doc. 19.
44 Id. at 3 n.5, 9-10.
that burden, then the nonmoving party must use evidence cognizable under Rule 56 to demonstrate
the existence of a genuine issue of material fact. Id. at 324.
A genuine issue of material fact exists if a reasonable jury could return a verdict for the
nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The substantive
law identifies which facts are material. Id. Material facts are not genuinely disputed when a

rational trier of fact could not find for the nonmoving party upon a review of the record taken as a
whole. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); EEOC
v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014). Unsubstantiated assertions, conclusory
allegations, and merely colorable factual bases are insufficient to defeat a motion for summary
judgment. See Anderson, 477 U.S. at 249-50; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994); Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994). In ruling on a summary-judgment
motion, a court may not resolve credibility issues or weigh evidence. See Delta & Pine Land Co.
v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). Furthermore, a court
must assess the evidence, review the facts, and draw any appropriate inferences based on the

evidence in the light most favorable to the party opposing summary judgment. See Tolan v. Cotton,
572 U.S. 650, 656-57 (2014); Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001). Yet,
a court only draws reasonable inferences in favor of the nonmovant “when there is an actual
controversy, that is, when both parties have submitted evidence of contradictory facts.” Little, 37
F.3d at 1075 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).
After the movant demonstrates the absence of a genuine issue of material fact, the
nonmovant must articulate specific facts showing a genuine issue and point to supporting,
competent evidence that may be presented in a form admissible at trial. See Lynch Props., Inc. v.
Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998); Fed. R. Civ. P. 56(c)(1)(A), (c)(2). Such
facts must create more than “some metaphysical doubt as to the material facts.” Matsushita, 475
U.S. at 586. When the nonmovant will bear the burden of proof at trial on the dispositive issue,
the moving party may simply point to insufficient admissible evidence to establish an essential
element of the nonmovant’s claim in order to satisfy its summary-judgment burden. See Celotex,
477 U.S. at 322-25; Fed. R. Civ. P. 56(c)(1)(B). Unless there is a genuine issue for trial that could

support a judgment in favor of the nonmovant, summary judgment must be granted. See Little, 37
F.3d at 1075-76.
B. Maintenance and Cure
“‘Maintenance and cure is a contractual form of compensation afforded by the general
maritime law to seamen who fall ill or are injured while in the service of a vessel.’” Meche v.
Doucet, 777 F.3d 237, 244 (5th Cir. 2015) (quoting Jauch v. Nautical Servs., Inc., 470 F.3d 207,
212 (5th Cir. 2006)). “Generally, an employer ‘must pay maintenance and cure to any seaman
who becomes ill or suffers an injury while in the service of the vessel, regardless of whether either
party was negligent.’” Johnson v. Cenac Towing, Inc., 544 F.3d 296, 301 (5th Cir. 2008) (quoting

Bertram v. Freeport McMoran, Inc., 35 F.3d 1008, 1012 (5th Cir. 1994)). Maintenance entitles a
seaman to a daily living allowance for food and lodging. See In re 4-K Marine, L.L.C., 914 F.3d
934, 937 (5th Cir. 2019); Hall v. Noble Drilling (U.S.) Inc., 242 F.3d 582, 586 (5th Cir. 2001).
Cure entitles a seaman to necessary medical services. See Guevara v. Maritime Overseas Corp.,
59 F.3d 1496, 1499 (5th Cir. 1995).
An employer “is allowed to rely on certain legal defenses to deny a claim for maintenance
and cure.” Johnson, 544 F.3d at 301 (citing Brown v. Parker Drilling Offshore Corp., 410 F.3d
166, 171 (5th Cir. 2005)). One of these defenses was articulated by the Fifth Circuit in McCorpen
v. Central Gulf Steamship Corp., 396 F.2d 547 (5th Cir. 1968). To establish the McCorpen
defense, an employer must show that (1) the seaman intentionally misrepresented or concealed
medical facts; (2) the nondisclosed facts were material to the employer’s decision to hire the
seaman; and (3) a causal connection exists between the withheld information and the injury
complained of in the lawsuit. Brown, 410 F.3d at 171 (citing McCorpen, 396 F.2d at 548-49).
1. Intentional Concealment

The first prong of McCorpen is satisfied “where the shipowner requires a seaman to submit
to a pre-hiring medical examination or interview and the seaman intentionally misrepresents or
conceals material medical facts, the disclosure of which is plainly desired.” McCorpen, 396 F.2d
at 549; see Wimberly v. Harvey Gulf Int’l Marine, LLC, 126 F. Supp. 3d 725, 732 (E.D. La. 2015)
(“Failure to truthfully answer medical questions or expound upon a condition when requested by
the employer in a medical questionnaire test can forfeit a seaman’s right to maintenance and
cure.”). The “intentional concealment prong of McCorpen is an essentially objective inquiry”
which “neither necessarily turns on credibility nor requires a subjective determination.” Brown,
410 F.3d at 174-75.

Here, Westbank has not carried it summary-judgment burden of demonstrating that Milne
intentionally misrepresented or concealed material medical facts. Milne indicated, in some way,
that he had back issues on three separate forms. At the preemployment physical in February 2022,
he also informed the doctor of his back problems and taking hydrocodone. While it is true that
Milne did not specifically state on the April 2022 form that he had recently received physical
therapy, and taken medications, for back trouble, he could have interpreted that question to mean
at the time the form was completed and he maintains that he was not doing either of those things
at that time. On the current record, the Court cannot find that Milne intentionally misrepresented
his medical condition.
2. Materiality
Under the second prong of McCorpen, “[t]he fact that an employer asks a specific medical
question on an application, and that the inquiry is rationally related to the applicant’s physical
ability to perform his job duties, renders the information material for the purpose of this analysis.”
Brown, 410 F.3d at 175. A seaman’s “history of back injuries is the exact type of information

sought by employers.” Id. However, “[i]f an employee can show that even if undisclosed facts
were material he or she would have been hired regardless, the employer is not entitled to the
McCorpen defense,” and “[a] genuine issue of fact exists when it is unclear whether an employer’s
hiring decision would be affected by knowledge of a potential employee’s previous injuries.”
Chapman v. Spartan Offshore Drilling, LLC, 2016 WL 1393490, at *5 (E.D. La. Apr. 8, 2016)
(first citing McCorpen, 396 F.2d at 551-52; and then citing Jauch, 470 F.3d at 212).
Again, Westbank has not carried it summary-judgment burden of demonstrating that
Milne’s alleged omissions from the forms were material to its hiring decision. At the time Milne
was initially hired in 2022, he had reported back issues on two forms and at the preemployment

physical. Westbank was clearly on notice that Milne had some form of back problem and could
have inquired further. Indeed, Westbank did inquire further prior to the start of the 2023 fishing
season when its human resources director met with Milne. But, after that meeting, Westbank
allowed him to go to work anyway, without conducting any additional tests or examination. As a
result, on the current record, the Court cannot find that Milne’s alleged nondisclosure was material
to Westbank’s hiring decision.
IV. CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that Westbank’s motion for summary judgment on maintenance and cure
(R. Doc. 15) is DENIED.
New Orleans, Louisiana, this 14th day of January, 2025.

________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10780430. Public record. Not legal advice.